A servitude of right of way is a legal mechanism that grants a person the right to pass through another person's property. This type of servitude is commonly used when a property does not have direct access to a public road, and the owner must cross a portion of a neighbouring property to reach it. Understanding the particulars of this servitude is important for both property owners and those benefiting from the access it provides.
Types of Right of Way Servitudes:
Negative Servitude: This servitude restricts the servient property owner (the property owner whose land is crossed) from doing certain things that would interfere with the right of way, such as locking a gate or obstructing the entrance.
Positive Servitude: This type of servitude allows the registered holder (the person with the right of way) to perform specific actions on the servient property, such as driving, walking, or laying utility lines or pipes across it.
How to Establish a Right of Way Servitude:
By Agreement: This is done through a written agreement between the property owners, which is then registered in the Deeds Office by way of a Notarial Deed to ensure its enforceability.
By Prescription: A right of way can also be acquired through long-term, continuous use without the property owner's consent. For this to qualify, 30 years of uninterrupted use is generally required.
By Necessity: If a property is landlocked, meaning there is no other way to access it, the court can grant an easement by necessity upon application by the landlocked property owner, ensuring the property is accessible.
Legal Considerations for a Servitude of Right of Way:
Extent and Use: The specific terms of the servitude must be defined, including the exact location, the width of the right of way, and permissible uses to prevent future disputes.
Maintenance: Generally, the party enjoying the benefit of the servitude is responsible for its maintenance. However, this can also be agreed upon between the property owners.
Amendment and Termination: Amendments to the servitude can be made by mutual agreement between the owners. Termination can occur if the servitude is no longer necessary or if one of the owners brings a formal court application to cancel it.
For property owners granting such a right, it may impact the value and use of their property. Therefore, it is essential to understand the full implications of such a servitude. Legal assistance is advisable to draft an agreement before granting consent.
For the owner benefiting from the servitude, essential access is provided, but it is equally important to respect the terms to maintain a good relationship with the servient property owner.
A servitude of right of way is an essential aspect of property law that facilitates access and connectivity while balancing the rights of both property owners and easement holders. Proper legal guidance and well-drafted agreements are crucial to ensure these rights serve their intended purpose without resulting in conflict.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
